Can a Georgia parent 'kidnap' his or her own child?

On behalf of Weaver Law Firm posted in Child Custody on Friday, July 15, 2016.

This blog has discussed several of the legal mechanics of child custody and how the legal system tends to determine with whom the child lives and who get to make major decisions in a child's life. While courts attempt to be fair to parents within the strictures of their ambit to effect a situation that is in the best interests of the child, unfortunately not every party is always happy with the outcome of such cases. Georgia newspapers often carry stories of parents who have "kidnapped" their own child and taken him or her somewhere away from the proper legal custodian. But can a person be held criminally liable for doing something like this?

While the specific circumstances of every case will determine if the technical legal term "kidnapping" applies, there is a criminal statute that will come into play in cases where a parent has taken custody of a child he or she is not legally entitled to have physical custody of. Georgia Code Section 16-5-45 defines the criminal charge of "interference with custody." Custody, in this instance, refers to custody inherent in a child's parents, or that has been legally awarded by a court.

A person interferes with custody if he or she knowingly or recklessly takes a child from the legal custodian, gives shelter to a child who has been illegally taken or intentionally keeps a child beyond the period he or she is supposed to have custody of the child.

It is important to note that this means a parent could be guilty of this crime regarding his or her own child, if there is court ordered custody in place. Further, parents should realize that this charge would differ from a "regular" kidnapping crime, as it would apply even if the child is not taken or held against his or will. Simply knowingly taking the child when not entitled to custody, even if the child is happy to go, may be a crime.

While parents should always attempt to amicably work out child custody and visitation arrangements that are acceptable to both parties, in some cases hard choices must be made. Parents should be aware of their rights, and not allow the other parent to take liberties with any ordered custody or visitation that has been found to be in the interest of the child. There are legal ways for unsatisfied parents to petition for changes, and simply taking a child is not the answer.

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